Saturday, December 3, 2016

Kritarchy again?

Livemint reports that the Supreme Court of India has issued a slew of directions on a Public Interest Litigation (PIL) on when the national anthem should be played,

The court has directed all movie halls and theatres to play the national anthem before the start of a play, movie or any other programme. The court ordered that those present in the auditoriums must pay respect to the national anthem, according to Prevention of Insults to National Honour Act, 1971. The national anthem cannot be commercially expropriated. The full version has to be played and not any abridged version. The national anthem cannot be used in any commercial activity like in an entertainment venture. The national anthem cannot be printed on any ‘undesirable object’ where its dignity can be compromised. The apex court also asked the states and union territories to implement the order within a week.

I am not sure as to what was the constitutional imperative that required the Supreme Court to admit this PIL and go beyond the Prevention of Insults to National Honour Act 1971 to create law. Not to mention several executive directions that cover most of these issues. If there were issues not covered under the law, it was the responsibility of the Parliament and the Central Government to clarify on the deficiencies. At best, the Supreme Court could have issued directions to the government to address them as best thought fit, either as amendments to the Act or revised executive instructions.

I don't understand the constitutional imperative in directing that the national anthem be played before the start of a movie instead of its end. What if the movie's plot demands that the national anthem be played at the end? Similarly about the diktat that the national anthem cannot be used in any commercial activity - what if it is used in a film? I find it difficult to see beyond the very narrow prejudices of two individual judges, rather than any legal, leave aside constitutional, concerns. How would the society be affected or the constitutional provisions be infringed if the national anthem were played first or last in a movie hall?

About implementing the order within a week, the Honourable Court may be over-estimating the capacity of States and Union Territories to execute such decisions!

See also this by Nitin Pai who expresses concern at its cavalier dismissal of individual liberty in this context.

Even if you happen to think that respecting the national anthem is a good thing, requiring that it be respected undermines the possibility of respect. For an act to be an act of genuine respect rests on the possibility that you could choose not to respect; if that choice is taken away what you are eliciting is an external performance, not respect. In short, the judges have, once again, displayed a minimal grasp of moral psychology that underlies respect and value. In fact, one reason you want not to make “respect” compulsory is because then you denude society from being able to distinguish genuine respect from the mere performance of it under the threat of coercion.

Do we see this as an example of a decision that crowds out pro-social behaviour like these?